Bangelung- Bremer Bay and the Noongar Native Title Claim

There's a wild Celtic spirit in the genes of the many British migrants, convicts and refugees that resonates with the Noongar love for the land. The hopeless and helplessness of it that can drive one to drink, despair or acts of crazy bravery enough to be called anzacs. Like biscuits, flattened like the land and the experience of prison or boarding school where the man who pays the piper plays the tune.

It sings in our hearts and haunts our dreams, like a puzzle to be unravelled, the secret of living in this great land. Living on the edge is one thing – walking the Bibbulmun track and learning to endure is a lesson we all should learn until it becomes to crowded and cheap.

Living in the centre is another thing entirely – crawling out from under the crash into the blanket of silence and despair. There is no cheap knowledge – there is no track out here that can become popular – just red sand, spinifex and mulga - and secrets.

Secret ways, secret places. Not secret from some ill design, although that is the crow's story. But secret can also be hard won knowledge, the knowledge of generations of women and men searching out the ways and means of living in the desert sands.

Next week, they are featuring the Victorian Court's Circle of Elders experiment in restorative justice on 4 Corners. Even as we take away Native Title rights from the Yorta Yorta by reading their history as a territorial conquest, they (my people) have asserted their rights by recognizing that Native Title implies Native Law and that their (our) law has generations of precedent that could make a mockery of Common Law or more positively will force a reassertion of it's importance in the Australian context.

The week after this, the Noongar Native Title claim will begin formal hearings in Albany. The Noongar claim is over the South West of W.A. covering Perth and the entire South West from Eneabba to Ravensthorpe. Mind you, this combined claim is an uneasy alliance between the three overlapping claims that had been filed but, together, they represent the largest single group of Aboriginal people in Australia.

The problem for the Noongar people has always been finding agreement with each other. Mind you, this has been exploited by whitefellas, hypnotized by the vehemence that can be expressed towards one in-laws in a community that is, in reality, a small thousand year old village. A consequence of apartheid laws and attitudes that were and are still prevalent in W.A. Fuelled by the injustice and the poverty that makes this the funeral season (it's the end of winter and there's a funeral every Friday), anger serves a different currency in this community. It can be used to intimidate wadjelas, because they've never been hungry, or had their kids go hungry and seen their high ideals go up in panic and fear.

The Noongar claim is probably the most important decision in the land, and it will come down to how a camping ground at the coastal hamlet of Bremer Bay(Bangelung - place of salmon) is viewed. The first Noongar Native title claim was lodged over the Bremer Bay area in 1992, in shortly after the original Mabo claim.

The reason for this was that, at the same time as the Mabo case was being decided, the issue of which shire Bremer Bay (on the south coast, 80kms east of Albany) should be in was also being decided.

The Gnowangerup Shire's historical control of Bremer Bay was at least partly due to the Noongar seasonal traffic from Gnowangerup and Ongerup down to Bremer Bay. The camp sites along the track, which is today a road, can be named by the families that travel this route, more importantly the campsite at Bremer Bay itself, was recognized by Gnowangerup Shire as a native camping ground and preserved and used as such. However, Jerramungup had become, in recent times, a significant town and for purely financial reasons it made sense for the seasonal village of Bremer Bay to come under it's control. Jerramungup is after all 50km closer!

In the aftermath of the Mabo decision it quickly became apparent that the Jerramungup Shire Council, to whom Bremer Bay was now being bequeathed, did not share the view regarding the disposition of the 'Crown' Land designated as native camping ground. As a result, a valid claim was lodged on behalf of the families immediately affected.

Shortly after, broader overlapping claims were lodged on behalf of the Southern Noongar and the Perth Noongar communities. The current claim is the combined Noongar claim, the only one to be recognized by the Court and negotiated after much heartache and acrimony.

The precedent that matters will be the Yorta Yorta decision by the Federal Court where it was found that the decision to move onto Cumeraganga Reserve in the 1880's destroyed the 'fabric' of Yorta Yorta law. The difference between the Yorta Yorta and the Southern Noongar people is that many of them (over 50%) remained working on farms in their country and continue to live close to their traditional lands.

Amongst other places, these included the Bremer Bay campsite where the Warrangu, Koreng and others have come to spear salmon in the surf in late summer and to relax on the beach since time immemorial. The only difference is that the spear has been traded in for a surf rod and reel and the kids play with computer games instead of orphaned animals.(Maybe these things matter, but more likely, they are just the surface of things. Children play with what’s available.)

In a way the Yorta Yorta decision is a rod for the court's back, because it drew an arbitrary line in the sand regarding where, when and how the fabric of a law existed and was thereafter no more. On the other hand in the Miruwong Gajerong claim, it was established that Native Title is a 'bundle' of rights (such as the right to hunt, or to camp) that can be unbundled.

The Noongar Native Title Claim will, in all probability, end up in the High Court, simply because it's so important. The question that will be hopefully decided will be how the 'bundle of rights' and the 'line in the sand' intersect. But more broadly, as the Yorta Yorta experience demonstrates, the law of karma guarantees that the law of the land may indeed prevail even if it's form takes a little while to evolve and it appears and grows in unexpected directions.